The Volokh Conspiracy

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Judge Lee Rudofsky (E.D. Ark.) Suggests Filing of Amicus Briefs, Offers Oral Argument to Junior Lawyers


From Order on Amicus Briefs, just issued today; it will be entered in all of Judge Rudofsky's civil cases:

When I was practicing law, I often wondered why amicus briefs were generally not filed at the district court level. It occurred to me back then that such briefs could have considerably more impact at the district court level than they have at the circuit court level or even at the Supreme Court. Since taking the bench, my views on the desirability of amicus briefing at the district court level have only grown stronger. While the majority of cases on a district court's docket don't warrant amicus briefing, there are a healthy number of cases each year that do.

By way of example, and not limitation, each year a handful (or two) of cases on my docket present really serious issues of constitutional law or statutory interpretation that are not directly controlled by binding precedent. And I have found that, in these cases, the parties often do not have the necessary time or economic resources to devote to full analyses of the text and history of the provision or provisions at issue. In such cases, my judicial process and my decisions would likely benefit from amicus briefing on the original public meaning of the disputed provision or provisions. I can imagine amici providing, among other things, important historical context, in-depth corpus linguistics analyses, or detailed structural arguments that might not make it into the parties' briefing.

I recognize that amicus briefing is a costly and time-consuming endeavor. However, it is also a great way for more junior attorneys at law firms, non-profits, corporations, and government entities to gain valuable experience, make a good reputation for themselves, and get some oral argument time. Accordingly, in addition to making it known that I invite and am grateful for amicus briefs in my cases, I wish to extend the following notice. Anyone who is the principal drafter of an amicus brief on either a dispositive motion or a motion for preliminary relief in one of my cases will be guaranteed at least ten (10) minutes of oral argument time so long as the person has been a lawyer for fewer than seven (7) years. The parties in the case may not in any way fund the amicus brief or the drafter's attendance at oral argument.

An amicus brief (attached as an exhibit to a motion for leave to file) must be submitted no later than three (3) days after the filing of the principal brief by the party that the amicus brief supports. If the amicus brief supports neither party, it must be submitted no later than three (3) days after the filing of the principal brief by the party opposing the motion. An amicus brief must be no more than twenty (20) pages, unless leave of the Court is obtained to exceed that number of pages. As a general matter, the Court will look favorably upon a request by any party to respond to an amicus brief in writing. And, of course, any party may respond to any amicus brief at oral argument.

Some other courts have similarly tried to encourage oral argument by junior lawyers, but this is the first (though I hope not the last) example of this being expressly extended to amicus briefs. I think of this as a teaching hospital model, but for lawyers: There are obvious advantages to having work be done by the more experienced lawyers, but you can't get more experienced lawyers unless junior lawyers can get experience. And here at least the client's life won't be at stake (both because these are civil cases, and because the amicus doesn't have a direct liberty or property interest at stake in the case).

I expect that Judge Rudofsky would also be open to oral argument by law students who had drafted a brief under a professor's supervision, and who would be prepared extensively for argument by the professor. I was delighted to have my student Pauline Alarcon have a chance to do this before Judge Stephen Clark (E.D. Mo.); there might be an opportunity for this sort of thing here as well.

And while I expect that many of the takers will be from Arkansas, I think the local rules of the Arkansas federal courts let out-of-state lawyers join the district court bar without being members of the Arkansas state bar: A lawyer can join, and thus file amicus briefs, so long as the lawyer is "licensed to practice in the jurisdiction where that person's principal law office is located and where that person principally practices law," and is a member of the bar of at least one other federal District Court.